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NCUA attorney-client rule needs more clarity CUNA

WASHINGTON (10/28/08)—A recent explanation by the National Credit Union Administration (NCUA) of its opinion on attorney-client privilege needs additional clarification, according to the Credit Union National Association CUNA), which requested the recently issued explanation. The agency acknowledged that it previously permitted credit unions to withhold from federal examiners records covered by attorney-client privilege because of an assertion that producing them could be read by the courts as having waived the privilege. However, the NCUA wrote in its Oct. 21 letter to CUNA, it will no longer permit credit unions to withhold privileged documents because of that assertion. The possibility of a court using the release of a privileged document to claim a credit union waived its attorney-client privilege was eliminated by the addition of Section 205(j) to the FCUA, the agency claimed. “This does not mean that it is no longer possible for a credit union to assert the attorney-client privilege against NCUA,” wrote Robert Fenner, NCUA General Counsel, in the agency letter. “However,” he added, “our experience has been that the waiver of privilege as to a third party was almost always the reason for asserting the privilege in the past.” CUNA Deputy General Counsel Mary Dunn said of the NCUA letter, “While CUNA appreciates NCUA’s efforts to clarify its information on this topic, we believe unanswered questions remain about the application of the NCUA opinion.” Dunn said CUNA will follow up with the NCUA.